by James. E. Moliterno. New York: Oxford University Press, 2013. 252pp. Cloth $85.00. ISBN13: 978-0-19-991763-1.
Reviewed by Herbert M. Kritzer, University of Minnesota Law School. Email: kritzer [at] umn.edu.
James Moliterno’s The American Legal Profession in Crisis: Resistance and Responses to Change joins a raft of recent books about the looming crisis facing the legal profession (e.g., Susskind 2008; Morgan 2010) and/or the legal academy (Tamanaha 2012). What sets this book apart is Moliterno’s recognition that the profession has bounced from crisis to crisis to crisis for more than 100 years, and that many of the more contemporary crises are echoes of crisis of the past. This is particularly true for the lament that legal practice has become a business rather than a profession, a lament that is now well over 100 years old (Galanter 1996, p.552) .
Moliterno’s core argument is that the profession, by which he generally means the organized profession and/or the elite members of the profession, has repeatedly failed to be forward looking as it confronted the then perceived crises. Rather, the profession has largely sought to preserve the status quo, or even tried to return to an imagined golden age (which never really existed). He attributes this failing to the profession’s tendency to look inward rather recognizing that change in the world where lawyers work is natural and beyond the control of the profession.
Moliterno develops his argument through ten chapters, eight of which discuss a particular issue or set of issues that the profession struggled with, or in a few cases, is still struggling with. Chapter 1 lays out the core dilemma as Moliterno sees it: the legal profession has never figured out how to deal with the changing world in which it exists, and consequently when change comes along the profession finds itself trying to fight those changes rather than figuring out how it must adapt to the change. As he sees it, “The law is a crisis-prone profession” (p.1) finding itself confronted with yet another crisis “every decade or so.” More importantly, as each crisis came along, the profession chose to look “inward and backward” for solutions rather than looking toward the future and trying to learn from what others in society were doing. Part of the challenge as Moliterno describes it is who or what speaks on behalf of the profession: judges, lawyers and their multitude of organizations (local organizations, specialist organizations, the American Bar Association, law firms), the legislatures of the states where professional regulation formally resides, or academic lawyers who control the education of future lawyers and hence function as gatekeepers for those who seek to become members of the profession?
So what are the crises of the 20th and 21st centuries that have presented challenges to the legal profession? Moliterno [*228] identifies eight crises that have occurred more or less in sequence:
- the entrance of immigrants into the profession in the early 20th century
- the communist threat starting in the 1930s and continuing into the 1950s
- the civil rights movement and the development of cause lawyering (1950s and 1960s)
- the embarrassing role of lawyers in the Nixon administration and Watergate (1970s)
- the so-called litigation boom (1970s and 1980s)
- the loss of civility (1980s)
- the threat of alternative practice structures involving combinations of lawyers and nonlawyers in the form of multidisciplinary practice (MDPs) and alternative business structures (ABS) (1990s)
- the combination of globalization, multijurisdictional practice, technology, and the economic crisis (2000s)
At least some of the crises have been well discussed in prior work. For example, the conflict between the WASP bar and immigrants entering the profession has been frequently discussed by other scholars (e.g., Auerbach 1976: 106-109). Still, Moliterno’s discussion is comprehensive, bringing in conflict both between bar elites representing business interests and immigrant lawyers and between small town lawyers and immigrants, conflict over contingency fees, conflict over advertising, and issues concerning admission requirements.
Moliterno’s discussion of a number of the crises makes it clear that in his view lawyers should be able to resist the dominant norms of the larger social world. This is strongest in his chapter on the civil rights movement where he devotes substantial attention to white lawyers who worked to maintain the Jim Crow system in the South. Certainly the mandate of Brown v. Board of Education created a crisis for white southerners, but why would one expect the white lawyers of the South to be any different in their response than were other well-educated southern elites? Lawyers reflect their social environment just as do other professionals. I was reminded of a survey of supreme court judges done in 1960 by Stuart Nagel; he found that 37 percent of his respondents agreed with the statement “colored people are innately inferior to white people,” and that 88 percent agreed with the statement that “marriages between white and colored people should be greatly discouraged” (Nagel 1969, 205).
One might argue that desegregation was different because it was a legal issue, and hence lawyers should have been [*229] willing to embrace and obey the law as determined by the Supreme Court of the United States. One could just as easily argue that desegregation was a moral issue, and members of the white clergy in the South should have been willing to embrace the moral principle of equality before God. Neither most white members of the clergy nor most white members of the legal profession were able to rise above worldview they had been socialized to accept. I could make much the same point with regard to Moliterno’s discussion of the legal profession’s response to the perceived threat of communism.
The crises discussed in the core chapters vary in the degree to which they reflect larger political and social phenomena versus being largely internal to the profession itself. Chapter 7 focuses on the supposed “loss of civility” within the profession that was perceived to have happened in the 1980s and 1990s. There certainly was a lot of discussion within the profession about civility. Was there really any change in the behavior of lawyers during this period? Moliterno notes that both law practice and the larger world had become “more competitive” (p.143). I know of no systematic evidence that civility had declined even if surveys of lawyers and judges found perceptions of issues with civility (p.140). There were some developments that might be related to a perception of such a decline. For example, in 1984 Rule 11 of the Federal Rules of Civil Procedure was changed to require that federal judges impose sanctions on lawyers who were found to have violated the rule’s provisions (which had to do with insuring that motions and pleadings were well-founded and not done for nefarious purposes). There was a lot of debate over the impact of Rule 11, with some claiming that virtually every case involved a Rule 11 motion requesting sanctions on the opposing lawyer – a view not supported by empirical studies of Rule 11. The hyperbole over the rule and its impact was almost certainly unwarranted, but it could account in part a perception among judges and litigators that hostility had increased and civility had declined.
The final two crises Moliterno discusses both deal with a complex of changes to the structure of legal practice: multidisciplinary practice, multijurisdictional practice, technology, and globalization. He includes in this discussion the impact of the recent economic crisis on the demands for legal services and demands from clients about how legal practice should be conducted. While again I’m not sure I would label these “crises,” they do represent genuine challenges to the American legal profession, and to legal professions around the world. While the challenges are internal to the profession, the source of these challenges is broader developments in the environment in which lawyers work. Professions generally, the perhaps the legal profession more than some others, are products of their environment. Technology and globalization are having broad ranging effects on economic activity of all types. The federal structure of law in the United States is increasingly challenged by these kinds of developments and adds another dimension of change for the American legal profession. To this I would add one issue that Moliterno discusses in only a glancing fashion (pp.169-70): the growing pressure in the U.S. to license [*230] nonlawyers to provide certain types of routine legal services. In the 1990s the ABA had a Commission on Nonlawyer Practice which produced a report suggesting it was time to design licensing programs for providers of limited forms of legal services; the report never even made it to the ABA’s House of Delegates for consideration. In 1998, after a great deal of conflict, California did adopt a licensing regime for “legal document assistants” and “unlawful detainer assistants” (the latter deal with evictions), and in 2012 the state of Washington implemented rules for Limited License Legal Technicians who would be authorized to provide a range of services including completing forms and providing limited forms of advice regarding procedural issues. As Moliterno notes (pp.166-68) the regardless of whether the profession formally recognizes some of these changes (e.g., MDPs), they are happening, and this is true of nonlawyer practice as well.
Through his discussion of these myriad crises, Moliterno weaves in his primary theme that the profession has resisted change and has failed to look beyond its own parochialism in confronting the changes that have repeatedly overtaken the profession. The most recent manifestation of this failing is the ABA’s Ethics 20/20 Commission which was charged with reviewing the current Model Rules of Professional Conduct in light of the current batch of challenges facing the profession. The result was a set of quite proposals of change going to the House of Delegates in 2012. The result was little in the way of meaningful change as some of the 20/20’s proposals ended up being withdrawn.
Moliterno’s bottom line is that the profession has to confront the realities of legal practice in the 21st century and this includes facilitating national and cross-national practice; resolving a range of issues related to the use of technology by lawyers, their clients, and their potential clients; and modernizing antiquated rules governing how lawyers work with other professionals. This will require the profession to change how it deals with change. While this is certainly true, Moliterno makes the mistake of seeing the problem as largely lying with the elite of the bar. In fact much of the resistance to change comes from that part of the bar that serves individuals and small businesses. It is this segment of the bar that is most threatened by multijurisdictional practice, multidisciplinary and nonlawyer practice, and fast moving technological development. While these issues pose challenges for large-firm practice, those firms have the resources and expertise to incorporate these kinds of changes into their practice environment. In fact many of these changes – multijurisdictional practice, allowing nonlawyer investors in law firms, crossnational demand for legal expertise – do or would serve the interests of the large firms, at least those sufficiently nimble to take advantage of the changes. Large law firms in other countries have embraced some of these changes, and the failure of American law firms to do so may put them at a competitive disadvantage vis-à-vis their corporate clients. On the other hand, the lawyers serving individuals and small businesses can ill afford competition from nonlawyers nor can they afford to invest in expensive technology; they are not going to be significant players in either multijurisdictional or crossnational legal practice. [*231]
Moliterno notes that in other countries government has played a lead role in changing how the legal profession operates. The adoption of alternative business structures (ABS) in England was driven by an act of Parliament in England, as was a change almost 30 years ago that ended solicitors’ monopoly on handling property transfers (“conveyancing”). In the U.S. the legislative branches of government have generally left regulation of the legal profession to some combination of the profession itself and the state supreme court; in some states, the supreme court has asserted control based on a separation of powers argument (i.e., it would be an invasion of the court’s powers for the legislature to regulate the profession). Thus, while most professions are regulated by executive agencies under authorization of the state legislature, the legal profession generally looks to the state supreme court which is composed of members of the state’s legal profession. Moliterno takes the position that the profession will only be able to deal adequately with change, now and in the future, if it opens itself up to significant input from outside the profession, either through a regulatory model controlled from outside the profession or through voluntary incorporation of nonlawyers into the governance process of the profession. Moreover, given the nationalization of legal practice, the time is fast approaching when the profession needs to be treated nationally rather than by 51 separate regulatory regimes. However, it is manifestly unclear how change of this magnitude can come about. It seems very unlikely in the absence of some mammoth crisis strikes the profession.
Auerbach, Jerold S. 1976. Unequal Justice: Lawyers and Social Change in Modern America. New York: Oxford University Press.
Galanter, Marc. 1996. "Lawyers in the Mist: The Golden Age of Legal Nostalgia." Dickinson Law Review 100: 549-62.
Morgan, Thomas D. 2010. The Vanishing American Lawyer. New York: Oxford University Press.
Nagel, Stuart S. 1969. The Legal Process from a Behavioral Perspective. Homewood, IL: The Dorsey Press.
Copyright 2013 by the Author, Herbert M. Kritzer